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Mar 10, 2016
keywords: Department Review Board, Welfare Checks, 115 Rule Violation Reports, 602 Administrative Appeals, Ashker v. Brown Settlement, Agreement to End Hostilities
From Prison Focus Issue 48
In mid-November, 2015, CPF conducted legal visits with 16 men who are in Pelican Bay State Prison. In the wake of the Ashker v. Governor settlement (Ashker, or, “the settlement”) on September 1, 2015, and with the torturous “security/welfare checks” that started on August 2, 2015 in Pelican Bay SHU, these interviews provide us important insight into the lives and conditions for those in the SHU. In order to preserve confidentiality, names of the men have been anonymized and replaced with random initials. The repetition of a letter does not indicate that the reporter of the facts is the same.
Many talked about their recent and current experiences with Departmental Review Board (DRB), and, now after the settlement, the Institutional Classifications Committee (ICC). Due to the settlement, people are getting moved around; some of our interviewees had recently arrived to Pelican Bay from other SHUs. Of those who are long-termers at Pelican Bay, only some have had a transfer hearing; many are still waiting. The ICC claims that they are “backlogged” because they are now required to review so many people for transfer out of the SHU. M. G’s counselor said there are 110 people in line ahead of him and she could not give him a timeline. Mr. X was told he would be transferred to Pleasant Valley, but as of the date of our interview, he was still waiting to be transferred. Mr. J reported that a friend of his had been waiting seven months to be transferred, and he finally left to Salinas the day before our interview, along with 25 other people. Mr. P was told that he would be moved to another SHU. Mr. U was placed in the Step Down Program (SDP). Mr. K was re-validated at his ICC review, and was told that he would remain at Pelican Bay SHU. Mr. G reported that he saw the ICC and they “elevated” his case to the DRB.
Reports indicate that case-by-case reviews are also delayed due to the settlement. Mr. R is waiting for his case-by-case case review; he was told it would happen before the end of the year, but now with the settlement he has no idea.
Everyone knows at least one person who has been released to a general population yard (GP, or “mainline”). It was reported that there were at least four men who had been released from the Pelican Bay SHU to the Pelican Bay mainline, but all were soon put into Ad-Seg “based on confidential information.” Many people expressed concern about getting put back in the SHU as soon as they are released to mainline, with the same lack of due process afforded to them as their earlier placement. “They call you ‘asleep’ once you have been let out into GP and then if you get any 115’s, then you are ‘activated’ and sent right back in the hole.”
Medical issues are a major concern at Pelican Bay. Five people reported that upon transfer from another facility to Pelican Bay, the doctor was instructing guards to take away eyeglasses. Mr. V reported that when he was transferred to Pelican Bay SHU, everyone on the bus with him had their medication taken away. Those who had eyeglasses taken away reported that they were told their eyes need to be worse to meet PSBP standards. Mr. W was told he no longer qualified for Hep C medication. Mr. J has had cancer medication withheld. He reported symptoms including pain, exhaustion, and dizziness, but was told that he would only be entitled to medication once the cancer reached stage four. Mr. C developed eczema while in SHU and is getting nothing for relief. Mr. D is ADA-classified but the doctor has refused to prescribe both his pain and nerve medication. Despite clear diagnoses to the contrary, he is now told his only condition is arthritis. Mr. F reported that he has serious medical problems and has applied for ADA-classification but it has been denied. Many reported that the doctor will not give new medications or make referrals. Mr. T reported that he filed a medical 602 appeals form for a needed medical appliance, but it was denied and as a consequence, he is in constant pain.
The “security/welfare” checks are also causing serious medical problems. Supposedly a mental health directive, the “security/welfare” checks consist of 30-minute rounds conducted by guards where a metal wand must connect with a magnet placed near cell doors. Due to all the metal and concrete in the design at Pelican Bay, as well as the malicious intent of certain guards required to conduct the checks, the checks are extremely loud and disruptive, where banging and clanging can be heard from many cells away and continue as guards march up and down stairs to get to the upper pod. Because the checks are conducted every half hour, including throughout the night, men have been unable to sleep through the night since August 2, 2015, and the sleep deprivation is taking its toll. Many people reported medical problems attributed to sleep deprivation, including shortness of breath, hyperventilation, trouble breathing, chest pains, irregular heartbeat, and exhaustion. Earplugs have been passed out, but they are not sufficient to block the noise from the guards. The men reported that the amount of noise depends on which guards are on duty, but reported that even those guards who are respectful and trying to be quiet can't avoid waking people up, especially due the noise associated with opening and closing of the electric steel doors. Mr. L reported that some people are beginning to adjust to the noise and are able to sleep through it for some of the rounds, but even so, everyone continues to be sleep deprived.
People outside the walls are organizing against the checks. One man reported seeing one such protest on the local news, which gave him hope for change.
The 30-minute checks are not only impacting sleep for the men, but also affecting programming. Mr. H reported that the men are not getting full yard time because of delay related to the “welfare” checks. Also, it can take up to 30 minutes to be moved to the yard, so time is often cut short once you get there. There have also been changes to access to yard since the Ashker settlement. Before, men were allowed to take water to yard and come back to their cell to use the restroom. Now they are not allowed to have water or use the restroom in their cell during yard time. These new limitations are retaliation in response to the settlement. Mr. U stated, “Once they start taking 'small stuff,' when you are used to your program, it really starts affecting you.” Mr. V reported that some C/Os are now counting shower time as exercise time.
Limited educational programming is available. There is pre-GED education, GED education, and some college courses, although you have to pay for college. Since the settlement, there is also some creative programming, such as guitar lessons (without an actual guitar). Mostly, educational opportunities consist of anger management, victim awareness, and other self-help courses. College education includes courses from Coastline Community College and the “College Guild.” Individuals must purchase their own textbooks, which are expensive. Mr. K reported that the C/Os create delay by not responding to applications to begin educational courses, pass out materials days and sometimes weeks late, and do not play the correct videos during the scheduled times. There is no access to any vocational training opportunities.
PROPERTY, CELL SEARCHES, AND MORE
Individuals who have recently been moved into Pelican Bay expressed complaints about the loss of personal property during their transfer. In addition to the loss of prescribed medications and eyeglasses, people reported that legal materials, a typewriter, a TV, clothes, and other personal property do not arrive with the person to Pelican Bay. Mr. X reported that he had consulted the property matrix for Pelican Bay and only brought allowable items, but upon arrival, was simply told those items were not allowed. Mr. B reported that it took over 2 and a half months for him to receive his property after a transfer from Tehachapi; Mr. I reported that it took over six months for him to receive all of his property back after he arrived at the Bay.
Several men reported that cell searches are common at Pelican Bay. Mr. M reported that it is rare for the C/Os to do large sweeps, but small searches. Other concerns include the fact that men who had tried to get a cellmate have been denied. One was told he was “incompatible.” No one had been successful have been getting a double cell. There were 6 open in November 2015 and the guards want a couple people on the higher floor to move into them so they don't have to walk so far.
Mail has been erratic. Some men reported that their mail has been late because of the IGI interference, anywhere from 10 days to a month late. With the “security/welfare” checks, guards are telling the men that they no longer have time to process mail; each shift is leaving the mail for the next shift. Mail used to be delivered earlier in the day, but now sometimes does not get delivered until 8 or 9pm, which is too late to respond until the next day. Mr. U reported that the timestamp of his mail is ripped off by the time he receives it; he believes this is to cover up the fact that the mail had arrived at the facility days before, but was delayed in getting to him. Mr. E reported that mail he had sent out marked LEGAL mail was returned to him opened. Mr. W reported that a book was sent to him, but was retruned to sender because it wasn’t from a bookstore. Individuals CPF interviewed who had moved from the SHU to general population reported that mail service was not delayed in that part of the prison but is processed timely.
FOOD AND NUTRITION
The food at Pelican Bay is notoriously bland, cold, and innutritious. Recent reports confirm that nothing has changed. The food “sucks,” has no flavor, arrives cold, and with small portions. Some say it is the worst food in the CA prison system, but others say they've had worse at Tehachapi. Many have reported that since their participation in the hunger strike, they have been unable to regain the lost weight. Individuals with special diets particularly suffer. Mr. E is diabetic and, while he gets sugar-free pudding, he also gets very unhealthy food for diabetics including pasta, bread, and ice cream. He said that a diabetic specialist was the one deciding his diet. Mr. O is on the Kosher diet and reports the portion sizes are tiny and his food is very repetitive. Mr. T reported that due to the 30-minute checks, meals are not delivered on time, but will be left to sit out for up to an hour at times while C/Os do checks.
Individuals who had been moved from the SHU into the GP yard at Pelican Bay report that meal service is far superior than what is served in the SHU. Hot meals are actually warm, the meat is better quality, and portions are more reasonable.
RULES VIOLATIONS, ADMINISTRATIVE APPEALS AND ACCESS TO THE COURTS
Men reported that overall, the use of 115s (rule violation reports) has increased since the announcement of the settlement. Several individuals reported that they had received 115s for petty offenses, things that previously had not led to a violation, and for incidents that had nothing to do with the individual. Mr. T reported that there has been an increase in 115s with an “STG-nexus,” because under the settlement, behavior must be linked to an STG in order to be a “SHU-able offense.” Mr. Z reported that he received a 115 for a “conspiracy” case that he believes had nothing to do with him. He was told the evidence for his 115 was based on “confidential information,” so he had no opportunity to defend himself. Mr. U has heard of multiple reports where individuals are receiving 115s for “acting in a leadership role,” with an STG-nexus, which are nearly always based on “confidential information.” Mr. D was issued a 115 for receiving a letter that was written in a “gang font.” Mr. C was issued a 115 after a cell raid where an extra water bottle was found in his cell. Mr. V, a documented vegetarian, was issued a 115 after he refused a tray that had meat on it.
Individuals who had filed 602s reported that it continues to be rare to see a 602 granted. Multiple people have filed 602s regarding property that was never returned after a move. Mr. M’s 602 was “partially granted” in that some, but not all, of the property was returned to him; Mr. E’s 602 on this was still pending at the time of the interview. Mr. G reported that he knew of one individual who won a 602 because his legal mail was not opened in his presence. Mr. Q filed a 602 regarding money sent by his family; neither he, nor his family, have had the money returned. Mr. O filed a 602 to protest C/Os refusal to honor a scheduled visit with an attorney. He was told the C/Os were backed up due to the 30 minute checks and they would not have time to transfer him to the visiting room.
Access to the law library continues to be difficult. According to Mr. L, use of the law library is “like pulling teeth. The guards insist that they do not have enough staff to escort people around the prison. Two individuals reported that it was so difficult and frustrating to get into the law library that they have ceased to pursue their legal claims over rights violations. Mr. Y reported that for his neighbor, it regularly takes about a month to get in after putting in a request. Mr. A reported that he has only had access to the law library a total of ten hours in the past 90 days. Mr. T, who has spent time at both Corcoran SHU and Pelican Bay SHU, noted that the library in Corcoran was much better stocked, with access to highlighters, whiteout, a hole-punch, and other basic office supplies. None of these items are available at Pelican Bay.
Mr. K reported that if someone is in the law library, they are not allowed to leave and re-enter for any purpose, including to use the bathroom. This means that if someone is at the library for 2-4 hours, they cannot go to the bathroom during that time. This is a barrier as well for some people in trying to access the library.
AGREEMENT TO END HOSTILITIES
The Agreement to End Hostilities, penned by men in the short corridor at Pelican Bay in October 2012, continues to play an important role in race and group relations at Pelican Bay. Mr. Y stated that he thinks the Agreement is working out well, but that some people try to sabotage it, namely the C/Os, who continue to try to stir animosity among groups. Mr. B reported that there is now more dialogue among all racial groups, especially in Corcoran and Pelican Bay. Two men reported that on the 23rd of each month in general population (GP), people of all races play basketball, horseshoes, handball, touch football. Individuals who had formerly been in the SHU and were transferred to general population through the DRB were the first to initiate these games, then others in GP came on board. Also, on the 23rd of each month, people in GP walk around the yard with someone from a different race to talk.
Mr. Q said that he believes the solidarity of the hunger strike made the gang investigation team think they are losing power. He feels there is more respect for one other now. The men inside understand that system is out to get them and the way to beat it is through organizing, writing, and protest; violence doesn't work anymore because it can be used against them.
Aug 20, 2015
keywords: Medical neglect, Mental Health, 602 Administrative Appeals, Retaliation
From Prison Focus Issue 46
“He is so obviously intelligent and so obviously an example of the human resources that our society tosses down the drain…” CPF Legal Investigator
This report is based on information received through written correspondence and interviews with incarcerated men at Corcoran State Prison (COR). The interviews were conducted with over 25 men, in June and July of this year. To prevent retaliation, we have refrained from using names, and use random initials instead. All quotes are from incarcerated men at COR.
TREATMENT OF INVESTIGATORS
Treatment of CPF Legal Investigators by COR staff reflects the challenges faced by other prisoner advocates and loved ones who seek to visit COR SHU inmates and those at other facilities as well. One must question the underlying intentions of COR and CDCR officials in creating the unnecessary but numerous hurdles that potential visitors must jump through. When CPF investigators arrived at COR on the scheduled time, arranged and approved in advance, they were given the run-around. First they were told there was no record that they were coming and that they would have to reschedule. After insisting otherwise, they were sent to another location on the prison grounds, where they were also informed that there was no record of their visit. Finally, after much cajoling, someone took the names of the men that the CPF investigators had on their visiting list, and disappeared into an office. The investigators were sent to wait in an empty room. 55 minutes later and without a word from any guards, one of the CPF workers left the room to find out what was going on, and they were finally allowed in. The interviewees had been waiting for an equally long time, shackled and without explanation for the delay. Consequently, the interviews were behind schedule even before they had begun. Between visits, guards were nowhere to be found. Investigators had to spend time looking for guards to move men into the visiting rooms. As a result of lost time, several visits had to be cut short. During one visit, staff brought the wrong person for the visit, then refused to allow visitors to talk to him, and would not bring the requested person out.
Investigators stated that the prison was filthy, had roaches everywhere and dust covered every surface. This dust blows in from off of the Valley Fever-ridden Central Valley floor and from the ubiquitous, squalid feed lots, within the vicinity of which the prison is located. The visiting rooms were described as unbearably hot, dirty and uncomfortable. One room had swastikas carved into the glass, and another one had so many markings on the window it was hard to see through. The seats for the imprisoned individuals were awkwardly placed on the opposite wall as the phone so that most of the men either stood up or knelt on the floor throughout the entire interview. Those who used the chairs were forced to look across a line down the middle of the glass in order to see the visitor, who also has to crane around this line. The phone line had horrible static and were ramped up to top volume with no controls, limiting communication and clarity.
“State medical care at Corcoran is practically non-existent.” And the substandard level of care that is provided exasperates the already compromised health of men in the COR SHU. There are significant delays and one can expect to wait for weeks or even months to receive a response after submitting a medical request. It took RG two years to receive the appropriate treatment for a torn muscle. It can take two to three years of administrative hoops to receive surgery. Quick medical attention can be received only in extremely dire situations, and even then men may suffer or die from delays. Pain and other medications are denied regularly. Americans with Disability Act (ADA) requests are blatantly denied, as with one man who was not allowed to have his wheelchair in the cell with him, and consequently spent most of 24 hours a day lying on his cold, concrete slab, unable even to write.
Both high blood pressure and diabetes are poorly managed at COR and are exasperated by the lack of fresh or nutritious food. BK, who does not have access to diabetic meals, skips eating parts of his regular meals in order to restrict his sugar intake, but consequently restricts his nutritional intake as well. His strength suffers as a consequence. QY has been unable to acquire the glasses recommended for him by an ophthalmologist, and is unable to get the recommended surgery due to cost.
Men who participated in the hunger strike are still paying the price for their commitment. Many suffer from on-going health problems. (See more below). Medications continue to be denied and withheld regularly. Medical appointments (as well as time in the library) are reportedly counted as yard, and is marked in the records as yard time provided, and yard time taken.
Over the past few decades, prisons and jails have become the largest warehousers of Californians who suffer from mental illness. Huge numbers of mentally ill men and women languish within California’s solitary confinement cells - possibly up to a third of those in the SHU - despite recognition that solitary confinement worsens psychiatric conditions and causes severe suffering.
The following statement, made by an incarcerated individual at COR regarding mental illness on the mainline of California prisons is relevant to the SHU as well: The increase of prisoners suffering from mental illness reflects the “criminalization of mental illness upon the closure of state hospitals. Mainline prisons are insane asylums; inmates desperately need psych evals and are not getting it… The cops [guards] don’t know how to deal with mentally ill inmates. They just know how to [pepper] spray them… Some get meds, but they’re zombie meds.”
Corcoran (and other California maximum security prisons) have special solitary confinement units for the mentally ill, called Psychiatric Services Units (PSU) which separate mentally ill inmates from the rest of the SHU population. These units are part of what former state prisons director Michael Stainer’s described as his intent to "offer a robust mental health program" within "alternative segregated housing." The question of whether severe isolation could ever be consistent with successful mental health treatment is irrelevant, because men with severe mental illnesses are still being housed in the ordinary SHU. The men are told that this is due to space issues, but many are adamant that this is a method of retaliation against other men in the SHU.
We received conflicting reports regarding psychiatric checks. One man stated that the psych tech does walk-by check-ins every one-two weeks; Another man reported that psychiatric checks happen every 90 days. There is reportedly little to no mental health treatment provided, at least no treatment of substance. Also, it is difficult to attain one’s mental health records which may be needed for hearings, lawsuits, etc.
Men are also suffering from nightly sleep deprivation due to the poorly-named practice of “wellness checks,” which consist of guards banging metal against cell doors every ½ hour, 24/7. At Pelican Bay, it has been reported that they are no longer conducting wellness checks. However, we received reports from COR that they are happening and continue to be disruptive to the men’s sleep.
Many men are being transferred to COR from both Tehachapi and Pelican Bay SHUs. (Exact numbers not available due to lack of state or CDCR mandates to keep records.) As a result of all the transfers, many people in the COR SHU are being moved around right now. All of the transfers combined with understaffing is thought to be the cause of increased disruptions to yard, shower, infirmary and library access.
Conditions at COR continue to be reprehensible. According to PK, “The laundry is terrible and dirty; [The] buildings and everything in them is filthy.” Poor ventilation, which has been a problem at Corcoran for years has not yet been addressed by administration. The poor ventilation along with all of the dust and filth in the air is very problematic for everyone, and especially for those with asthma and compromised immune systems.. DV, for example, explained that the stuffy heat affects his respiration, ability to exercise and to sleep. TM explained that the air circulation is hot and slow in the summer and blows strong and cold in the winter. Prisoners are uncomfortable year round. Perhaps COR administration has not found the issue to be urgent as all staff areas reportedly have functioning air conditioning and heating systems. There has been no hot water in the 4A corridor for more than two months.
CONFISCATION AND DESTRUCTION OF PERSONAL BELONGINGS
Men who have been transferred to COR SHU from other institutions systematically report that guards have lost, destroyed, or confiscated their property upon arrival. Many have been waiting to get their belongings back for 1-2 months. Some have never gotten their property returned. NB, who lost half of his belongings in his transfer from another prison, filed a 602 to get his property back, which was denied. MH has been waiting two months to have his special glasses returned to him, which were prescribed to him before arriving at COR, were expensive and paid for by his family. He also filed a 602 which had thus far accomplished nothing. PR described a cell search in which he believes coffee was intentionally spilled all over his books.
The 602s process at COR is not an effective system, and can barely be considered due process. 602s frequently receive blanket denials. Often there is no response at all after a 602 has been submitted. 602-related retaliation is a serious risk. BM voiced concerns that 602s are not treated as confidential legal mail. This creates more potential for COs to screen out 602s and to retaliate, and allows for greater delays then if 602s were to be classified as legal mail. SD has been placed in Ad. Seg. and the SHU repeatedly for purported gang-related offenses.
Write-ups are often issued over petty acts, and punishments are random and left to the whim of a given guard. Reports indicate that 115s are used as retaliation and to suppress the voices of those who speak up for their rights. JB explained that there are not too many write-ups being issued for talking, “except for certain people.” Those who are targeted are written up for the slightest missteps, such as greeting a friend in passing. If one received a 115 for participating in the hunger strike, and another one for saying “hello” in passing to somebody who is validated as a gang associate, or for sending a drawing home that allegedly has gang-related symbols in it, you are apt to spend more years in solitary confinement than if you kill a fellow prisoner. One man who was an avid participant in the hunger strikes has received three written violations since then; one for the participating in the strike, one for a strike-related drawing and one for a fictional piece of writing. All three were written up as “gang-related activity.”
LACK OF EDUCATIONAL OPPORTUNITIES
There continues to be little access to programs and educational opportunities in COR SHU. Because of the cost for private courses and textbooks, education beyond a GED is inaccessible to many. PR, who reads at a 3rd grade level and receives no help for his educational pursuits, explained that working on his legal materials is very difficult. Others striving to educate themselves are frustrated at having their efforts at self-rehabilitation so thoroughly stifled.
Retaliation is routine and typically involves the issuance of 115s, moving men around within and between prisons and cell searches, which usually result in property loss and subsequent 115s. Withholding mail, showers and yard are among the many other methods of staff retribution towards SHU prisoners, especially those who outwardly challenge the system.
MAIL AND INMATE FUNDS
Mail service fluctuates and continues to be problem. It can bedelayed for up to two months, and then arrives all at once in a bundle. It is routinely lost or destroyed and prisoners believe mail is tampered with as a form of retaliation. Outgoing mail is often delayed or not received at all. Men from COR SHU voice their concern that some mail never leaves the facility at all. Another reported problem is that the confidentiality of legal mail is compromised and read outside of the presence of the prisoner, against regulations.
Family members now must use an online system called J-Pay to send money to their loved ones. There are no longer other options. This is a problem because it requires access to a computer and knowing how to use it. This creates increased barriers for those whose loved ones do not have these resources.
Access to the law library continues to be terrible.“You can only get library access if you make a fuss.” The waiting time can be months. One can only be sure of receiving library time if a legal deadline is approaching. However, even then one must wait before receiving their mandated time in the library. PP stated that this makes it difficult for men to prepare for cases in advance. As with medical appointments, time in the library is counted as a substitute for yard time.
Yard and showers are inconsistent, and even more so on weekends. Cancellations and disruptions occur regularly. If an incident occurs in one corridor, yard is suspended for everyone. Consequently, men are not receiving the full two hours, three times a week yard time that they are supposed to. Though sometimes staff offers make-up yard time, where one can get several hours at yard, all at one time, one is then at yard alone whereas normally the adjacent cages are full. At Corcoran SHU, this is one of the only times one is in the immediate presence of others who are not guards, though talking is still prohibited. But even make-up yard is inconsistent. We received a conflicting report that make-up yard used to be offered, but no longer is.
There has also been less access to showers lately, and some reported having no access at all. Consequently, men use their sinks to wash themselves. As reported above, there has been not hot water for showering or otherwise in 4A for weeks at a time.
Reports indicate that most of the men in COR SHU remain hungry most of the time, and that the food served at continues to be barely edible. The food is “worse than at Pelican Bay – much worse. Just garbage, in fact…and of course it’s dirty because the whole place is filthy.” Meals are delivered uncovered between facilities across the yard and arrive lukewarm and dusty. DV stated that the food is so bad that it has caused him to vomit on more than one occasion.. TR refuses to call it “food”. After the hunger strike there were reportedly more bugs and hair in the food, than usual. PR reported finding pincer bugs in his food. He also lost a filling when he bit into a rock in his food. He had been waiting over eight months to get his filling fixed, at the time of the interview.
Insufficient portions, which reportedly became smaller after the hunger strike, are especially problematic considering the lack of nutritional value of the food that is provided. Men remain hungry unless they are able to supplement their meals with canteen food, which they must purchase themselves. Those who are indigent cannot count on supplementing their food intake with canteen purchases. KJ explained that on the months when he is not able to go to the canteen he loses 1-2 pounds.
This June and July, Muslims observed the holiday of Ramadan, where they are required to fast during the daylight hours for a lunar month. This year was particularly difficult because Ramadan passed over the summer solstice, which is the longest day of every year. Individuals in the SHU observed Ramadan and were told that they would be provided with a feast on the final night, when the fast was to over. Despite that promise, they were not given any meal at all on that night. Instead, one was told that there would be a “feast” the following day. Of course there was no feast, and he received his regular hallal meal the following day, which included insufficient portions, as usual. A group 602 was submitted in regards to the withholding of a meal at the end of Ramadan.
THOUGHTS ON THE HUNGER STRIKE
Hunger strike participants (and even those who did not participate) continue to experience strike-related retaliation in one form or another. EA, who lost his visiting privileges without clear reason, believes this was an act of retaliation for his participation in the hunger strike. NG stated that the consequences for him have been problematic but that the strike was worth even the small changes he has seen. He explained that he now has a different relationship with food, and to eating in general, and often cannot face eating at all. Many hunger strikers are still suffering from subsequent health problems. MH said he has still has not gained all of the weight back that he lost, and he has had two undocumented “man downs” since the strike, due to his compromised health. However he also stated, emphatically, that despite his health issues and the retaliation, he is glad he participated in the hunger strike and that it was worth the sacrifice. Other participants voiced feeling proud of having been a part of it and hold no regrets.
Aug 20, 2015
keywords: Medical Neglect, 602 Administrative Appeals, Agreement to End Hostilities
From Prison Focus Issue 46
“People are coming out of the SHU skinny and pale. Their minds are effected… It start to change you.” Anonymous
This report is based on information received through written correspondence and interviews with incarcerated men at Pelican Bay State Prison (PBSP). The interviews were conducted with 38 men, in March and June of this year. This report does not cover the Step Down Program (SDP) or Department Review Board (DRB), both of which are covered in a separate SDP/DRB report. All quotes were made by incarcerated men at PBSP.
The medical care at PBSP has not improved. CPF continues to receive reports of denied, untimely and less than inadequate care. It is widely believed among prisoners that withholding medical care is used as a method of retaliation. Doctors reportedly do not listen to the men and are falsifying information in prisoners’ charts. Some falsely claim that their patient turned down treatment. They downplay the symptoms and undermine men's claims in order to withhold medications and treatments. For example, one person reported that medical staff misrepresented his medical issues in his records, downplaying the degree of pain he was experiencing, and was consequently denied pain medications. Another person reported a severe skin condition that was classified as cosmetic and treatment was denied.
Medications are frequently confiscated upon arrival at PBSP, including from those with severe conditions such as chronic degenerative disc disease. After one person’s pain medications were confiscated, he was “barely able to get aspirin.” When a condition is chronic, such as allergies, instead of automatic renewal of their medications, they must make a medical request for an appointment each time their medication runs out, and pay for each appointment. Others have been told that their medications will be returned once they get to the mainline. In addition, some men refuse to go to the infirmary because it is “too risky” and “too dirty”. One reported that he will not even go to the infirmary, for fear that he will lose the medications he already has.
Items such as glasses, compression stockings for high blood pressure, back braces and canes are regularly denied or confiscated, from both the men already at PBSP, and those just arriving from other prisons. One man reported that he had his back brace confiscated when he arrived from Corcoran. He had to put in a new request, and go through the lengthy process of reacquiring the necessary items, a process he presumably already went through at Corcoran. Another man had his reading glasses confiscated upon arrival at PBSP and was made to order new ones through the prison canteen.
Men who suffer from Hepatitus C, which is rampant in California prisons, are not given access to medications known to prevent the onset of symptoms. MERS, a potentially fatal respiratory infection, and staph infections are not being treated properly. High blood pressure is widespread. Substandard food and excessive amounts of stress contribute to widespread hypertension and diabetes. Poor environmental conditions aggravate pre-existing health problems, while creating new ones. The alternate blowing of cold or hot air into the cells exasperates men’s aches and pain and promotes the flu and other illnesses.
Even if decent medical care was provided, the health of all men in solitary confinement would remain compromised due to the horrible conditions, food and abuse. Those who are in good health when admitted inevitably develop health problems that will almost certainly go left untreated.
Few challenge the fact that solitary confinement and extreme sensory deprivation negatively effect mental health. Men who did not suffer from mental health problems before solitary confinement, report developing problems that worsen with time spent in the SHU. Simply put by one person, “It starts to change you.” One man, recently released from the SHU to the mainline and allowed to have contact visits again, described how his deteriorating mental health and auditory hallucinations affected his visits with his wife. He explained that the movement of shadows was disconcerting, “like [the shadow of] a bird on the yard; you can’t figure out where it comes from and it’s paralyzing.”
Other reports describe memory loss, and becoming over- reactive to sounds while other sense are dulled. Aggression and depression escalate. Tempers are ignited with little or even no provocation.
We were informed that at some prisons mental health professionals distribute games and puzzles, but this does not happen at PBSP. Nevertheless, some men engage in activities such as math and mind games that help to stimulate his mind. One such example is a man who said he is trying to stave off losing his sanity “like my neighbors have.” Mental health check-ins are reportedly happening about once a week through the cell door.
CONFISCATION OF PERSONAL BELONGINGS
Cells are often searched when the men are not present but are at yard, in the shower or at a hearing of any sort. The prison confiscates many personal items, like letters and photos, that provide these men with some of the very few comforts they have. Items that one has had in their cells for years may be suddenly removed without explanation, and/or become a piece of evidence used towards validation, such as a photo of a friend or parent that the prison alleges is a gang associate. “IGI is saying that playing cards and pictures with puppy dogs are contraband.” One reported that photos and address book and family photos which were confiscated over a year ago have not been returned because, he was told, they are part of a pending IGI investigation.
The loss and destruction of important court papers is especially problematic. One individual had to start over on a prop 36 resentencing petition after IGI confiscated his legal papers, claiming that the witness list was a prohibited 3rd party communication.
Men arriving at PBSP from other prisons are systematically having their belongings taken or lost. Again, important documents frequently come up missing. The men are rarely allowed to keep all of the items that were approved at the prison from which they arrived, including medications, medical aids, extension cords, headphone extensions, FM tuners, grey sweatshirts and black shoes (shoes must be white), as well as the more personal items; photos, address books, drawings, legal papers and so on. “Anything they give us, they find a way to take. They will find something out of your control and use it against you.”
Most individuals in PB SHU are still only entitled to one package a year. The staff continue to arbitrarily deny package items that the catalogs state are approved. The vendors state that each item in their catalogs have been preapproved by the CDCR office of standardization. COs are reportedly supposed to open the packages in front of the men, however this often does not occur. The contents of one’s package are delivered in a bag, having already been rummaged through and missing items of which the recipient may or may not be informed.
One person who was sent a $360 book order by his family, but the individual was told that the books were on the disallowed list, which the family says is not the case. The books were never returned to his family, and has been unable to get a refund for the books. Others reported that their families tried to send annual packages, only to be told by the vendors that they could not send that person anything at all. Sometimes the delivery of a packages is so delayed that some of the food inside it goes bad.
602s are so frequently lost, delayed, uniformly denied or cause for retaliation, that some men no longer consider them as a resource worth using. Frequently, no responses are received at all. GG stated that he does not bother anymore because he “knows it won’t make it out of the building.” The process was described “as a joke” by one inmate. “The IGI is sent to investigate themselves,” he explained. “They lie and there is no accountability.” One person reported that when he filed a 602 appealing a 115 he had been issued, they sent the same officer that gave him the 115 to investigate it.
The risk of retaliation for submitting 602s is high. Nevertheless, many continue to submit 602s despite these problems. Each man is permitted to submit one 602 for a single issue every two weeks. This causes problems because if you have multiple issues to challenge, you can only appeal some because the others will no longer be eligible for appeal due to filing deadlines. For instance, if you received multiple mail stop notices during one week, you could only challenge the disallowment of one piece of mail. The others could not be 602’d later due to filing deadlines.
The IGI is slowly but surely returning to the use of innocuous, speculative information to issue 115s for STG/Gang activity. Primarily, imprisoned men who have been labeled leaders or members are being targeted, however, other people who have made complaints, submitted 602s or have litigation against CDCR are also targeted.
Though 115s are meant for specific behavior violations, PBSP IGI often do not identify a specific behavior, but rather write the all-inclusive term, “gang activity”. 115 violations are a serious consequence and can have real impact on the length of time an individual spends in solitary confinement.
There has been a notable increase in 115 write-ups that are mail-related, for alleged gang-related communications and activity. Following are a few such reports. One man was accused of “communication with the streets” after he wrote to a family member asking if they could help arrange for him to be celled with a friend of his, also at PBSP. He had been single celled for about eight years, and remains so at this time. Two men who were both writing to the same person received violations for a mutual “link” to somebody on the outside, and therefore, to each other. Another prisoner received a postcard asking if he had “heard from T.R.” When he responded that he had not, he was written up for gang-related communications, based on IGI’s claim that the initials were a code name for a gang associate. This sort of arbitrary denial of mail “chills the likelihood” of sending out letters, becoming yet another factor leading to the isolation of men from their friends, families and communities on the outside.
115s also continue to be issued on a regular basis for alleged gang-related communications, for talking to others in the law library, in the yard or on the way to a shower. One person reported that he does not go to the yard or law library because he fears false allegations of partaking in gang-activity by association.
According to men that have been in both PBSP General Population and the SHU, the mail service in the SHU is significantly worse. Outgoing letters to loved ones and others, as well as time sensitive legal papers, are not reaching their destination in a reasonable amount of time, and often not at all.
Individuals are sometimes not even informed their outgoing mail is blocked. One individual reported that he had no idea that his outgoing letters were being blocked until he finally received a postcard from his family asking why he had not been writing.
There has also reportedly been an increase in the denial of incoming mail. Often men are not informed of the confiscated letters, though they are supposed to receive a mail-stop notice. The “13 oz rule” for packages, which was not previously enforced, is now being enforced suddenly and without explanation. Several men have had their incoming mail returned for this reason.
IGI has been readily issuing mail-related 115s for alleged “gang-activity”. IGI frequently claims that certain addresses are connected to a gang. Men are denied letters from family members who are labeled as gang associates by IGI. In one report, a man received a 115 based on a letter from his elementary-aged daughter. IGI claimed that there was a coded message within her letter. (He 602d the 115 and it was dropped.) (See section on 115s for more on mail-related violations.)
One reported that he had a money order denied because the money, received from a pen pal who had won the money gambling, legally, was classified as “funds from an illicit source.” Another man reported that his money order was held for months, when it should have been deposited into his account right away. Another had his money order returned because it allegedly came from a gang-related address.
LACK OF EDUCATIONAL OPPORTUNITIES
The majority of incarcerated individuals with whom we meet and correspond express a strong desire to engage in educational activities. Despite it being common knowledge that education expands ones’ mind and contributes to the rehabilitation of troubled individuals, as well as key to success upon release from prison, the opportunities are scarce, to say the least. There are a limited number of people in SHU that are permitted to participate in educational programs, reportedly due to lack of funds and understaffing. Sometimes approval is based on release date, and lifers are given the lowest priority.
Most educational programs available to men at PBSP cost money, and those that are free are often full. Requests to enroll in college courses are met with either unreasonable delays or no response at all. Even AA and NA materials are difficult to acquire, making it a challenge for participants to work the 12 Steps. One individual, while housed in Ad-Seg, was permitted to attend a group/class, but would have been required to do a strip search each and every time he went to class. As a result he chose not to participate. Other prisoners eager to take college classes are unable to enroll because he has no ability to obtain a copy of his birth certificate or documentation of California residency.
A GED course is offered to SHU inmates, though it is unreliable and slow due to long delays. Most students have no access to an actual teacher or tutor. Homework can be submitted through prison mail, for feedback. There are reportedly many obstacles to accessing proctored exams. Exams that must be returned through the mail may be caught up in mail room delays, leading to an automatic fail. In Administrative Segregation (Ad. Seg. or ASU) there is no access to the GED course at all.
PBSP still refuses to provide less library time than what the other CDCR SHUs provide and less than what regulations require. See CCR § 3123(b). Computer access in the law library is also a problem. Even when men get the opportunity to get on a computer, they rarely have the skills or receive the guidance they need to complete the necessary tasks within the limited time they are permitted. “They put you in a room and say, ‘figure it out’.” Staff are reportedly unhelpful and uninterested in supporting prisoners in finding what they need.
We received a report that after the hunger strike COs retaliated against the men by liquidating their library. Many books were destroyed or removed, and though staff has reportedly begun to reassemble the library, the list of available books is much smaller now. Books ordered from catalogues, or legal cases requested from the law library, may take between one and two months to arrive, or not at all. This can have serious consequences for those working against inflexible court deadlines.
115s are issued for talking in the library. Some men who will not use the library, for fear of being written up for participating in “gang activity” if another inmate speaks to them, or if the COs think they hear something. Others are discouraged to go due to concern that their cell will be raided once they are gone.
While visits have reportedly increased for those in the Step Down Program, there has been an overall increase in the scrutiny of visitors at all California Prisons. Reports include descriptions of family members with criminal records are summarily denied visiting privileges, regardless of the nature of the crime or time since punishment was served.
Prisoners are not provided adequate notice that loved ones are coming to visit, even if the visits are scheduled. As a result, visitors are made to wait hours and visits are cut short, due to timing and capacity restrictions. This can be devastating to families who have not seen each other in years and even decades, and for family members who have saved money, taken time off work and traveled over 800 miles to visit.
In order for each inmate to receive his mandated hour and a half of yard time each day, staffneed to begin releasing men to yard between 7:15 to 7:30 a.m. Often staff “lounge around talking” until they feel like releasing yard, which is frequently after 8:00 a.m.. As a result yard time is frequently cut short for many, and the last person usually only gets a half hour. Yard is often cancelled for entire pods and blocks, due to DRB hearings, staff birthday parties, trainings and so on. If there is an incident, yard may be cancelled for everybody for the entire day.
Food is described with adjectives such as soggy, cold, spoiled, under-cooked, over-cooked, processed, artificial, tasteless, lacking anything fresh, and insufficient in quantity. Food is overly processed and has different taste or texture than natural foods, such as substitute cheeses do not melt and overly-processed peanut butter that give people cramps. The portions are small and men express waking up and going to bed hungry every day. Many substitute the meager portions with over-priced, nutritionally-lacking food from the canteen. Men drink a lot of water to help them feel full, and voice their conviction that poor quality food is used as a weapon to weaken them.
Men describe eating in their cells like eating in a bathroom.
STAFF BEHAVIOR AND MISCONDUCT
Guards continue to act with little or no accountability, behind a wall of silence. We are told that guards stand up and protect one another, even when some cross the line. One man stated, along similar lines, “The prison guard culture here is a big problem. Because of the hunger strike, some changes were made in Sacramento, but the guards have not changed. They are resistant to reforms… because it is considered to be a harsh place, where they can do what they want: Stop mail, give rule violations for innocuous things, deny mail, packages, property...”
Following are incidents that were reported to CPF. One man was sprayed with pepper spray because he was eating paper and reportedly refused to stop when the guards demanded. A serious violation was issued, (to the prisoner, not the guard) but was later dropped to a warning. Another was harassed for whistling while at yard. The guard opened and slammed his door and yelled at the man to be quiet. When the man refused, the guard went into his cell and destroyed his belongings. Another guard allegedly slammed a man’s face on the wall because he thought the man did not move close enough to the wall when other people came by in the same corridor.
Officers harass men who are involved in litigation against PBSP or CDCR with anything from the issuance of 115s, to taking their legal papers from their folders or manilla envelopes and ruffling through and disarranging them.
The so-called “random” urine tests are reportedly targeted and used as a method of retaliation as well.
One guard told a prisoner that he was dedicating his life to keeping him and others in the SHU.
THE AGREEMENT TO END HOSTILITIES
We continue to hear encouraging feedback about The Agreement To End Hostilities. Men voice their enthusiasm, saying that there is peace between groups in ways that there was not before. “Progress is being made.” Prisoners have reported that he would never have brought up issues on behalf of others from different races if it were not for the hunger strike and the growing solidarity between prisoners. He stated that they are “fighting together now” and that “everyone looks out for each other.”
Some guards continue their efforts to undermine this growing solidarity. One CO was heard saying, “I can’t believe you Mexicans are letting a black guy talk like that. You need to keep the African guy in check.”
MISCELLANEOUS REPORTS WORTH NOTING:
• The speakers in the pods are very loud, which is extremely disturbing and anxiety causing to men who are over sensitive to sounds of any volume due to extended periods of sensory deprivation.
• Relative to Corcoran and other CDCR facilities, PBSP offers the men the least amount of human interaction; it is the most isolated.
• “Potty Watch” searches continue to be practiced at PBSP. Men suspected of swallowing weapons or drugs have to undergo a cruel and humiliating contraband search procedure that lasts, at a minimum, as long as it takes the men to have three qualifying bowel movements, while being watched by at least 2 guards, which usually lasts between three and five days. Other states have far less abhorrent ways of searching for contraband, yet reportedly more effective. Potty Watch cannot be described as anything less than cruel and unusual.
• Phone privileges continue to be denied for the large majority of men in the SHU.
Jul 01, 2015
From Prison Focus Issue 46
This report is based on information received through written correspondence and interviews with incarcerated men at California Correctional Institution Tehachapi (CCI). To prevent retaliation we have refrained from using names. All quotes are from incarcerated men at CCI.
CPF visited Tehachapi for the first time on July 10. Our visit was scheduled after we received a significant increase in the volume of mail citing poor living conditions, physical abuse, property theft, and mismanagement of the flawed Step-Down Program. Our experience moving through the Tehachapi bureaucracy had parallels to prisoners' own experiences. While some were helpful and considerate, other guards behaved in ways that could plausibly be read as oblivious, ignorant, or malicious.
The most antagonizing behavior took place in the Ad Seg unit we visited, a unit that is bafflingly austere and hostile according to men who have been held there. Things began poorly when one guard who was apparently unaware of our visit crossed her arms and insisted, "You know that means we'll have to take them out," as though it constituted not only news but surprising news. What proceeded either was a series of misunderstandings or petty and cruel behavior. Rather than informing us that a man on our visit list was no longer being held at the unit, guards brought out a man whose last name was the same as a man on our visit list. We were later told the man we wanted to visit had been moved from Ad Seg long before our arrival. The individual who had been brought out declined to speak with us, so another man on our list was brought out soon afterward. He too declined to be interviewed, saying only "They told me you were my family."
Other administrative hurdles might have been funny if they hadn't also been violations of constitutional rights. Every incarcerated person is guaranteed privacy for legal visits so that the interviewer and interviewee can speak candidly without fear of reprisal. To the credit of CCI, there are three rooms of ample size labeled as private interviewing rooms in the units we visited. Unfortunately, they were already in use as either office space or storage. If you are reading this and are unfamiliar with CCI, know that there is enough empty space within the complex for a town and a small airport; denying prisoners their right to a secure interviewing room for the sake of storage is unjustifiable.
Another notable difficulty we encountered with the guards was their persistent resistance to passing legal documents between legal interviewers and interviewees. It was surprising the guards were unfamiliar with this aspect of the law, but to their credit, they yielded after consulting their superiors.
But enough of the absurdity we encountered. We learned a lot from the incarcerated individuals we met at Tehachapi and the written correspondence of many. These developments fall within the following three categories: (1) Step-Down Program; (2) Psychological and Administrative Abuse; and (3) Sanitation.
The biggest news with respect to reform and solidarity is that prisoners at Tehachapi have stopped participating in the SDP. We have received reports of individuals who participated in implementations of the SDP at Corcoran or Pelican Bay only to find an especially chaotic version of it at CCI. Several individuals reported that until May of this year, guards were sabotaging the step down process by issuing excessive 115s for without good reason, for anything from criticizing the SDP, to being named in someone else's kite, to filing 602s for missing property, all of which could halt their progress. In one instance, an interviewee reported that he had been given a definite SHU term in spite of never being found guilty. He was informed that “when he is found guilty” he would be regressed to Step 1.
This refusal to participate in the SDP aligns the efforts of incarcerated individuals at Tehachapi with those at Corcoran and Pelican Bay. According to one interviewee, the mismanagement of the SDP and the spike in 115s drew attention from authorities in Sacramento. The interviewee sounded optimistic by their visit, as he felt the attention from outside CCI would lead to reform, regardless of how Ashker v. Brown is adjudicated in the coming months.
CPF has received a number of reports of physical abuse at Tehachapi, which were described in our last issue, #45, and the individuals who spoke to us during our visit affirmed that beatings had taken place and that prisoners have been pepper-sprayed while defenseless in their cells for not cuffing up fast enough. this kind of abuse has become much less commonplace over the course of this year, although one interviewee reported that at least in Ad Seg instances still occur and tend to target the Black population. Those we spoke to confirm that wellness checks continue to cause sleep deprivation every night.
CCI's fickle bureaucracy was a more common complaint than fear of physical mistreatment. Complaints of guards taking or 'losing' property and slow-walking requests for its return were nearly universal. One man in SHU appeared exasperated as he chronicled the many times that he requested property that guards had taken from him upon arrival at Tehachapi. Rather than having it returned, he received a 115 after filing a recent 602 on the issue. "What's the point of treating a person like that?"
Another interviewee reported that he was told his glasses had been lost just after his arrival to Tehachapi. For nine months he requested that his glasses be returned. Finally, when a new guard visited his cell and the same request was made the glasses were 'found' within minutes and returned. "You can't ever tell if they will help you or just want to fuck with you," he said.
Another universal issue was the mishandling of both incoming and outgoing mail. The general consensus was that, like everything else, mail was slow-walked, but sometimes seemed to get 'lost' entirely and never reach its destination. One prisoner claimed the contents of two letters he sent were switched, resulting in serious delay and misunderstanding.
The individuals who spoke with us also reported that access to the Law Library was infrequent and difficult. One man estimated that at least three requests must be submitted before access is granted, which translates to an average wait of 1-2 months. Programming at CCI is sparse and unreliable. The only consistent educational programming tops out at the GED level. One can register for college remotely, but according to prisoners, these courses are nearly always full.
Yard at CCI SHU and Ad Seg sounds abysmal and almost certainly constitutes a human rights violation. Rather than allowing prisoners the required one hour/day five days a week, yard is stacked in three-hour blocks. Normally, this sort of stacking is reserved for when recreation yards are available to allow for extended exercise or socializing. However, the "dog pens" that were described cannot rightly be thought of as recreation yards. Instead, these approx. 7x30 ft rooms are partially exposed kennels, with bars jutting out about a foot on the end and cement everywhere else. Prisoners are left in these for hours to bake in the Tehachapi sun without so much as a chair.
With regard to sanitation, reports were mixed. The food provided actually drew praise from some men inasmuch as it was of higher quality than at other prisons, though it was also described as cold and poorly cooked by others. Pests were not reported as a problem. One extreme instance of unsanitary conditions was described wherein a toilet clogged and ran over, filling a cell with sewage. CCI guards allegedly placed meals on the floor in the sewage for days before making the needed repair.
As we prepare this newsletter, our general sense is that Tehachapi has come under increased pressure due to its mismanagement. Incarcerated individuals generally describe conditions as having improved, but there are still considerable human rights abuses that must be rectified. The atmosphere of the prison is ambiguous. Some guards genuinely seemed interested in our work and helpful, or they were at least disinterested enough not to make things unnecessarily difficult. However, our experiences in Ad Seg led us to believe that at any moment one could encounter a guard at random who decided it was their turn to exact some small bit of bureaucratic vengeance and ruin not only a day or a week, but months of work and planning for no reason whatsoever.
Jul 01, 2015
keywords: Ashker v. Brown, Departmental Review Boards, Step Down Progam
From Prison Focus Issue 46
Note: This report is substantiated through approximately sixty in-person interviews conducted within the past four months, and through correspondence received by Prison Focus during that same period. Information gleaned from a July visit to Tehachapi (CCI) is not incorporated herein, due Prison Focus's publishing deadlines. As usual, the names of interviewees and correspondents have been replaced with anonymous designations.
As we reported in Issue #45, earlier this year the plaintiffs in Ashker v. Brown* requested leave from the court to file a supplementary complaint. Judge Claudia Wilken issued an order granting their request on March 9, allowing class representatives who were transferred to other SHUs after spending ten or more years in Pelican Bay's SHU to remain in the lawsuit.
Plaintiffs' Motion for Leave to File a Supplementary Complaint, we further reported, was sought to preempt the CDCR's cynical effort to get around the lawsuit by moving people with ten years or more in Pelican Bay's SHU—parties to the first cause of action for cruel and unusual punishment, aka the Eighth Amendment class —to other SHUs.
In May 2012, when the First Amended Complaint in Ashker v. Brown was filed, over 500 individuals in Pelican Bay's SHU had been there for at least ten years. By the end of January 2015, only 213 remained. According to members of Plaintiffs' litigation team, just eighty-six such individuals were still left at Pelican Bay as of early July.
Judge Wilken's March 9 order and Plaintiffs' Supplementary Complaint will result in two trials, as we explained in Issue #45. This is assuming, of course, that no settlement occurs (more on the topic of settlement will be said in a moment). During the first trial, the court will determine among other things whether confining a person to the SHU at Pelican Bay constitutes cruel and unusual punishment under the 8th and 14th Amendments. If Plaintiffs prevail on that issue, the court will determine through a second trial whether confining a person to Pelican Bay's SHU for ten years or more, then transferring that person to another SHU, also constitutes cruel and unusual punishment.
LATEST DEVELOPMENTS AROUND ASHKER V. BROWN
The latest round of settlement discussions has been underway for many weeks and it's possible that a settlement could be reached, or not, before the end of this month. Although the discussions are confidential, the litigation team has generally indicated that they've been substantive, serious and far-reaching.
In view of negotiations with the CDCR, Plaintiffs have held off on filing a motion for summary judgment. That motion specifically relates to the second cause of action in Ashker, claiming lack of due process under the 14th Amendment. If successful, it would void as unconstitutional the six-year active/inactive review process, hence all validations of the Due Process class in Ashker.
In a noteworthy development running parallel to the settlement talks, on July 6, Plaintiffs in Lopez v. Brown (No. C 15–2725 YGR, N.D. Cal. 2015) filed a motion to relate their case to Ashker. The motion is currently pending before Judge Claudia Wilken. Lopez v. Brown challenges the conditions of confinement at San Quentin's Adjustment Center on essentially on the same constitutional grounds as Ashker. In the event that Plaintiffs' Motion to Relate is granted, it appears that Lopez would be reassigned to Wilken rather than the current judge, Yvonne Gonzales Roger.
What a settlement in Ashker could portend overall is up in the air until and unless a settlement is announced. However, it appears that those with ten-plus years in Pelican Bay's SHU continue to be prioritized for case-by-case (CBC) reviews by the Departmental Review Board (DRB). The filing of Plaintiffs' Supplemental Complaint, and the expansion the Eight Amendment class to include people shipped to other SHUs following prolonged confinement at the Bay, does not seem to have altered the DRB's demonstrated pattern.
As of February 20, 2015, according to the CDCR, 1070 reviews had been completed system-wide, with another 1600 left to go. Since the CBC reviews** were initiated in late October 2012, this averages out to about 38.2 reviews per month for a period of roughly twenty-eight months. We don't have confirmation of how many reviews have taken place since February. But, assuming that 38.2 reviews per month were also completed in each of the five or so months intervening between then and early July, another 191 reviews would have been completed during that period. Of those 191 reviews, about 66% of them would have involved men at Pelican Bay with ten-plus years in the SHU. (This is based on information provided in paragraph three of this article to the effect that, between February and July, the numbers of men at Pelican Bay with ten-plus years in the SHU was reduced from 213 to eighty-six; a difference of 127.)
SLUGGISH PACE OF CBC REVIEWS: NO RELIEF IN SIGHT
As discussed in Issue #45, the CDCR claimed in February that two new DRB reviewing teams would be trained and would focus on Corcoran and Tehachapi. The addition of two new teams to the two existing teams, which are respectively headed by Susan Hubbard and George Giarbino, would ostensibly increase capacity to conduct reviews. But if any new teams are out in the field, the Prisoner Hunger Strike Solidarity coalition's mediation team has not heard about it. Neither has anybody inside informed us or suggested to us that any new teams are up and running, either.
People who've been left to languish for up to twenty-four hours per day in cramped concrete-and-steel cages, often enduring torture for years to decades on end, should not have to indefinitely wait to simply go before the DRB. This is an intolerable abuse of internationally recognized standards of human rights and an affront to human decency.
Moreover, as we reported in Issue #45, most captives in the SHUs don't belong there according to the CDCR's own (exceedingly loose) standards. Departmental data have repeatedly born out that, of those who are receiving CBC reviews, nearly three-quarters of them are being placed in Step 5. This means that they are being placed on the mainline for a one-year observation period, wherever relevant Title 15 regulations are being adhered to. The nearly three-quarters percentage held true as February 20, the last time this writer is aware that any data were provided. This affirms the spirit and substance of the Five Core Demands issued in 2011 by incarcerated activists, exhorting against capricious and arbitrary placement and retention in the SHU. Segregation should only be used as a last resort, the Demands emphasize. (The Five Core Demands can be accessed at https://prisonerhungerstrikesolidarity.wordpress.com/the-prisoners-demands-2/ )
Many of our interviewees have offered the observation that the DRB is currently only reviewing the cases of "Step 5-ready" people, and/or those up for six-year active/inactive reviews under former rules. Yet, as discussed above, the CDCR reported on February 20 that 1070 CBC reviews had been completed, with some 1600 reviews still to go. Forty percent of all CBC reviews had been completed, in other words. So, if nearly three-quarters of those who've been reviewed have been placed in Step 5, appearances may be deceiving where it comes to whose cases are currently being reviewed.
DELAYS ON TOP OF DELAYS
As CBC reviews continue to glacially proceed, our interviewees and correspondents inside indicate that significant delays are ongoing even after people have seen the DRB and have been placed in steps.
At Pelican Bay in March, Mr. B reported that two individuals had respectively waited forty-six and fifty days to be transferred after being placed in Step 5. (Mr. B himself had not yet seen the DRB.) Mr. O reported more extreme waits— up to six months—for those in queue to get on a bus to Corcoran or Tehachapi. Mr. Q mentioned that people in his pod who'd been placed in Steps 3–5 two to three months earlier had still not been transferred. He'd been told before the first of the year that he was sixth on the list for DRB reviews, but said he'd been "bumped" each month since and had heard nothing recently.
Others determined to be inactive by Internal Gang Investigation (IGI) personnel, pursuant to six-year active/inactive reviews, are kept in limbo because the DRB has not gotten to them yet. Several interviewees or correspondents from two different SHUs have stated or strongly indicated that they are in this situation. Moreover, in July, Mr. XX informed us in writing that, out of about fifty people found inactive at Pelican Bay's SHU, thirty were waiting to receive DRB reviews. Twenty had been seen in absentia, he specified, but the DRB wanted to see the remainder in person.
How long any of these people have been waiting we don't know. Mr. RR, who's currently in inactive purgatory, said that a friend in like circumstances waited a year before he was finally transferred. In any event, the 2015 Department Operations Manual outlines the following procedure and requirements, at p. 399:
If it has been determined by the IGI that the inmate has had no gang activity for a period of six (6) years, the IGI shall submit a request to the SSU [Special Services Unit] to change the inmate’s status to “inactive.” If the SSU concurs with the IGI’S recommended gang status change, a new CDC Form 128B-2 shall be issued identifying the inmate as an “inactive” member/associate. Upon issuing a new CDC Form 128B-2 identifying the inmate as “inactive,” the DRB shall be notified by the housing institution. At its convenience, but not to exceed 180 days, the DRB shall meet and consider the inmate for placement in a level IV, 180 design housing unit [non-SHU maximum-security unit] for a period of observation. At the DRB’S discretion, the inmate may be transferred to a level IV, 180 design institution.
Granted that the only time limit explicitly spelled out above is the 180-day time period within which the DRB has to meet after receiving notification.
IN ABSENTIA REVIEWS
As stated above, Mr. XX informed us of twenty people at the Bay who'd received DRB "reviews" in absentia.
Mr. PP at Corcoran reported that he found out his case had been "reviewed" in absentia, without any notice to him that a review would be occurring. This was in 2013. One day the IGI came to his door wanting to talk to him, without explaining why. So, he declined the invitation. Two weeks later he received a notice regarding a "post-DRB" review. He was told that the DRB folks had been there and left because he "refused to come out" of his cell. It was then that he realized that he'd never gotten notice of the DRB review.
Only an idiot would refuse to see that DRB, he added.
During his "post-DRB" review Mr. PP learned he'd been placed in Step 2 and was asked to sign a Step Down contract. Taking the contract as an admission of gang-related activity, he declined. He was therefore regressed to Step 1, and there he remains, after spending more than ten years in Corcoran's SHU.
To be clear, the highest level of internal review that a person in the CDCR's custody can receive is review by the DRB. The DRB is a Secretary-level board; the Secretary of the CDCR being the highest official with the Department. (A DRB team is comprised of a Deputy Director or Assistant Deputy Director of the Division of Adult Institutions, and Chief of the Classification Services Unit). A decision made by the DRB is not subject to administrative appeal and can only be challenged by directly going to court.
That reviews are occurring—are allowed to occur—in absentia at the highest level available is outrageous, and evinces that lack of even minimal due process that those held in the CDCR's torture chambers have access to.
RETALIATION AGAINST CERTAIN INDIVIDUALS
More than thirty-five years ago, Mr. VV purportedly was involved in a riot at an out-of-state prison during which a guard was killed. He was later transferred to the CDCR in the mid '90s at the request of the state incarcerating him. Since that time, he's spent about twenty-one consecutive years in two different SHUs. Mr. VV sent us a detailed account of his history in segregated housing, and included with his letter documentation from the DRB, the IGI and the Institution Classification Committee (the highest level committee within a given California prison, abbreviated ICC).
In late 2012, Mr. VV 's case was considered by the DRB. His minimal disciplinary history while in CDCR custody and in the SHU was noted on a contemporaneously issued Form 128-G, aka Classification Chronology, as was the lack of information supporting "any degree of leadership or influence" with others. Indeed, Mr. VV had received but a single Rules Violation Report since being put in the CDCR's custody, for participating in a mass hunger strike in 2011.
Mr. VV's exemplary record aside, the DRB cited during its 2012 review his "involvement" in the aforementioned riot—he was scarcely an adult when it occurred—as a "concern." The Board therefore recommended his transfer to another prison as a "gradual step-down measure," claiming that he however "requested retention" where he was. These things are recorded on the aforementioned Form 128-G, which the DRB signed off on.
The same form also shows that the Classification Services Unit (CSU) independently recommended to the DRB that Mr. VV be transferred as a gradual step-down measure"—and at the inmate's request. To further complicate things, the form chronicles the DRB's 2001 application of "the administrative determinate PUB," which designates a public interest case, to Mr. VV's case. The DRB "removed" this designation in 2003, according to the official narrative. However, the narrative simultaneously avers that, during Mr. VV's 2012 review, the CSU brought up the fact that Mr. VV's name was still on the monthly PUB list. This was approximately nine years later after Mr. VV should have been removed from the list!
It's is possible that all of this is the result of astounding bureaucratic bungling or ineptitude, but more likely it reveals good cop-bad cop tactics used to disguise retaliation. In the alternative, or in addition to evincing good cop-bad-cop tactics, it could point to internal tensions between the CSU and the Division of Adult Institutions. Whatever it comes down to, it's Mr. VV who pays the price in a dungeon.
Mr. VV was eventually transferred 2013. Yet, his letter to Prison Focus did not mention that he'd since been placed in a step. After the transfer, an ICC official claimed, on a second Form 128G, that he'd refused to sign an Advisement of Expectations regarding Security Threat Groups. The official recommended that he be returned to the DRB within two years of his previous review in late 2012. According to Mr. VV, the latter DRB appointment never happened.
Mr. EE's history, as he recounted it in an interview, is somewhat similar. He told us in June that he was implicated some years ago in an incident between staff and prisoners at one state prison. In the aftermath, he was sent to Ad Seg (Administration Segregation) at a different prison and given an indeterminate SHU sentence. It appears that he was concurrently validated. Within the past year or thereabout—the timeline he provided was uncertain—the IGI found that there was no evidence linking him to any gang/Security Threat Group. He added that he'd had no Rules Violation Reports for about five years. Despite having gone before the DRB, he did not mention that he'd been placed in any step. It was the sense of the attorney-representative who interviewed him that he was still waiting for some type of decision; for a date to move out of the SHU, or to at least be placed into a step.
Mr. BBB said in July that he was "not eligible" for the Step Down Program (SDP). He is validated with an indeterminate sentence, but did not specify why he considered himself ineligible. That stated, we are aware from current and past interviews that Mr. BBB has filed more than one viable lawsuit against the Department. In addition, he has suffered well-documented incidents of physical abuse by guards, and was criminally and unfairly prosecuted relative to an assault on staff. Officers' reports of the assault, which he provided to Prison Focus, did not support a prosecution.
PEOPLE RETURNING TO SHU AND/OR BEING REGRESSED TO EARLIER STEPS
Between March and July, we received numerous reports of people being placed in Step 5 (ostensibly being placed on the mainline for a one-year observation period) then being returned to SHU, or otherwise being regressed to earlier steps after being place in Steps 2–4.
Several of these reports have been quite specific in the details. Others have been not so specific.
Here is a summary of some of the general reports that we've received:
• SDP is a "revolving door" with no merit because the intelligence is not transparent
• They're "recycling" people.
• A sergeant comes into your unit and says loudly, so that all can hear, that guards should write people up for any little thing they can find. This is retaliation, and a way to move people steps back, so they stay at the SHU.
• People in Step 5 don't last. They get in trouble and go back. Officers are on them a lot and their property is taken.
• Officers plant drugs or weapons in a person's cell.
• Those newly released to the yard are getting beaten up, or are seen talking to someone they have not seen in decades. They therefore get written up for fighting or for “conspiracy," which sends them back into the SHU.
• Staff provokes people who get off the bus when they arrive to a new prison. Staff harasses and physically intrudes upon them, in an attempt to get a rise.
• When you're out on the mainline, they assume you are running yard and are
dropping kites and notes.
• The IGI revalidates those in Step 5 for being mentioned in a kite or note.
• The IGI accuses those in people of having mail from an illegitimate sender. People so accused get written up for association and are regressed to an earlier step.
• The IGI takes pictures of guys before they leave for the mainline. The IGI then circulate the pictures to informants, who are instructed to keep a watch on and try and get information on those just let out.
SPEAKING OF INFORMANTS…
This won't come as a surprise to most readers, but our interviewees report that information supplied by confidential informants frequently comes up during DRB reviews.
Title15 hasn't been amended to exclude this type of information, which countervails the Five Core Demands. The Demands denounce the practice of debriefing and the extortion of flimsy or false information from desperate prisoners eager to earn points with their captors and torturers. They also denounce the CDCR's general use of superficial abstracted information to put people in the SHU or retain them there.
As to how the DRB is typically treating information supplied by confidential informants, opinions from inside are mixed. What is clear, though, is the resentment universally engendered by the reliance of CDCR personnel on such information.
For readers new to this topic, information from confidential informants is recorded on a Form 1030, aka a Confidential Informant Disclosure Form. Form 1030s go into a prisoner's central file, yet the prisoner is kept ignorant of specific contents and has no opportunity for meaningful rebuttal.
We've heard a lot from our interviewees and correspondents in recent months about the DRB process and the SDP; too much to be covered or coherently synthesized in one issue. (As if anything is ever coherent where it comes to the CDCR.) But we include below some observations from those inside that don't neatly fall into earlier portions of this article.
Mr. FF emphasizes that, after the CBC review by the DRB, any new hearings are in front of the local classification committee; the same people [assuming that you've not been transferred to another prison] who have kept you where you are.
Mr. TT raises a subject—the COMPAS Assessment—that Prison Focus has not heard much about lately, although we covered it at length in ##42–44. According to Mr. TT, who we spoke with in June at Corcoran, CDCR personnel are attempting to extort folks to complete the COMPAS Assessment by telling them, "If you don't complete it, we won't take you to committee." Another threat used is the threat of a Rules Violation Report.
Under the 2007 Public Safety and Offender Rehabilitation Service Act, data collected by the CDCR through COMPAS or similar assessments "shall be used to place inmates in programs that will aid in their reentry to society and that will most likely reduce the inmate's chances of reoffending." We have no way of knowing if information collected through the COMPAS Assessment is in fact being so used, but we do know that it goes into peoples' central files. We also know that the questions on the COMPAS Assessment are incredibly intrusive in nature, as well as self- and/or other-incriminating. In past issues, we provided examples of many of the questions.
Mr. E says that the majority of new people admitted into Ad Seg at Pelican Bay are coming from Corcoran. (We've received reports that, in the converse, many people arriving at Corcoran are coming from the Bay.) They're accused of being "associates of associates" of people validated as gang/security threat group affiliates, Mr. E elaborates. Some come for Step Down; some come because of initial validations. The latter make up the majority, in his estimation. Ad Seg is treated like a reception center from which up to twenty at a time are moved into the SHU.
Mr. ZZ is in Step 3 at Corcoran. He very much appreciates his group's facilitator and seems optimistic overall about the SDP. On the other hand, he considers the steps are far too long. And, like most everybody we've heard from over the past year or so, he objects to the journaling requirements required in Steps 1 and 2.
Prison Focus discussed these journaling requirements in detail in past issues, ##43–45. The journals issued have insinuating if not outright insulting titles and pose highly intrusive and leading questions that some have fairly categorized as "set-up" questions or debriefing questions. Mr. ZZ regards them as being calculated to dissuade people from participating in the SDP.
Mr. ZZ remains positive about the SDP despite misgivings, but his sense is that most officers are violently against it. During a July interview, he described with particularity and vividness a couple of incidents substantiating his perception about resistance from staff. He also talked about how one sympathetic person otherwise aligned with the state noted the fear that the IGI and others have about losing their jobs, on account of the SDP and other changes. At the same time, Mr. ZZ faults Sacramento for falling down on the job. Certain officers opposed to the SDP have complained that they've received inadequate information about or training on the program. He wonders why the CDCR isn't looking for or identifying officers who want to support the program and participate in it on the tiers.